Motor Accidents Authority of New South Wales v; North Cronulla Investments Pty Ltd

[1999] FCA 973

FEDERAL COURT OF AUSTRALIA

Motor Accidents Authority of New South Wales v
North Cronulla Investments Pty Ltd [1999] FCA 973

MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES v
NORTH CRONULLA INVESTMENTS PTY LTD & ORS

N201 OF 1999

EMMETT J

9 JULY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N201 OF 1999

BETWEEN:

MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES
Applicant

AND:

NORTH CRONULLA INVESTMENTS PTY LTD
(ACN 003 086 824)
First Respondent

MG & AM MARKETING SERVICES PTY LTD
(ACN 084 995 148)
Second Respondent

MARK HENRY
Third Respondent

DGA INVESTMENTS PTY LTD
(ACN 002 952 794)
Fourth Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

9 JULY 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N201 OF 1999

BETWEEN:

MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES
Applicant

AND:

NORTH CRONULLA INVESTMENTS PTY LTD
(ACN 003 086 824)
First Respondent

MG & AM MARKETING SERVICES PTY LTD
(ACN 084 995 148)
Second Respondent

MARK HENRY
Third Respondent

DGA INVESTMENTS PTY LTD
(ACN 002 952 794)
Fourth Respondent

JUDGE:	EMMETT J
DATE:	9 JULY 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. Yesterday I delivered my reasons for concluding that there have been contraventions of the Trade Practices Act 1974 (Cth) by the respondents.  I indicated the nature of the relief which I considered appropriate in the circumstances.  I have now heard argument from the parties on the form of relief and I expect that there should be no further difficulty in formulating orders that give effect to the reasons which I expressed yesterday.

2. The remaining matter concerns the costs of the proceedings.  The applicant has achieved some measure of success in the proceedings and ordinarily costs should follow the event.  That, however, is not an invariable rule. 

3. In my reasons of 23 March 1999, I canvassed exchanges between the parties up to that time.  At that time, undertakings were proffered by the respondents which obviated the need for any further interlocutory hearing.  I then said that it would have been appropriate for there to have been a greater degree of communication between the parties in relation to the matters which I set out in my summary of the correspondence to date.  I indicated that it may well have been possible to avoid any interlocutory application had there been an earlier response from the respondents indicating precisely the steps which were intended to be taken.  The absence of specificity in relation to the precise steps which were to be taken and the particular relation to visual and aural advertisements left the applicants somewhat “up in the air” as to the steps which the respondents had in mind.  I did not consider that it was possible at that stage to determine where the ultimate merits lay in the matter.

4. I have now resolved the questions of liability.  It is apparent that the principal thrust of the claims made on behalf of the applicant was that it was misleading for the respondents to use the term “green slip” at all in connection with their business as part of the name under which they carried on business.  I have rejected that contention.  On the other hand, I have found that there were contraventions of the Trade Practices Act by the respondents, not only in relation to the name under which it carried on business, but also as to the particular manner in which it conducted its business. 

5. The respondent has not at any stage formally acknowledged contravention of the Trade Practices Act.  On the other hand, it has exhibited a willingness to take steps to take account of complaints made on behalf of the applicant.  In particular, the steps that were proffered at the interlocutory stage significantly reflect the conclusions which I have reached. 

6. I am left with the impression concerning this litigation that it is litigation which could have been avoided with a little bit more co-operation between the parties.  It is, of course, very easy to say that and, in circumstances where allegations of contravention of the law are made, respondents are entitled to resist them.  Nevertheless, they do so at risk as to costs. 

7. I am satisfied that it was reasonable in the circumstances for the applicant to have commenced the proceedings at the time when it did, although as I have said, the application of judgment may have deferred the commencement of the proceedings until further discussions had taken place.

8. I am mindful of my conclusion that the real issue in the proceedings was the stance taken by the applicant concerning the use of the term “green slip”.  I cannot help but think that, if that stance had not been taken, it may well have been possible to resolve the differences between the parties without resort to litigation.  On the other hand, as I have said, at no relevant stage did the respondents formally acknowledge any contravention and it has been necessary for the applicant to continue the proceedings in order to obtain what is, in effect, significant relief in terms of the contraventions.

9. I consider that in all of the circumstances, it is appropriate that there be no order as to the cost of the proceedings.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             9 July 1999

Counsel for the Applicant:	M.K. Minehan
Solicitor for the Applicant:	McCabes Solicitors
Counsel for the Respondent:	N.F. Francey
Solicitor for the Respondent:	Elliot Tuthill
Date of Hearing:	9 July 1999
Date of Judgment:	9 July 1999